Wednesday, June 10, 2015

This is a good case for protectors of neighborhoods' peace and quiet. Although the authoes suggest it might have been wrongly decided (They don't support strong CEQA protections it seems), we thik this is a good call. Upholds the recognition that neighbors' testimony is relevant. States that even allowed decibel levels may be too much.

Reprinted from http://www.martenlaw.com/updates/mitigated-negative-declaration-rejected

Fourth District Court of Appeal Rejects Use of Mitigated Negative Declaration

June 10, 2015

On May 7, 2015, California’s Fourth District Court of Appeals
published an opinion rejecting the use of a Mitigated Negative
Declaration (MND) for a special events permit on the basis of contrary
noise and traffic impact testimony from neighbors.
The decision, Keep Our Mountains Quiet v. County of Santa Clara,
construes the “fair argument” standard favorably with regard to lay
testimony and underscores the risks inherent in pursuing an MND in
contentious circumstances.

Lay (and Other) Testimony Under the “Fair Argument” Standard

Much of the Keep Our Mountains Quiet decision
concerned the question of whether resident testimony regarding the
potential noise and traffic effects of a permit for a previously
unauthorized special events use (e.g., weddings) constituted substantial
evidence supporting a fair argument that the project would result in
significant impacts, thereby requiring an Environmental Impact Report
(EIR) instead of an MND.

The court first held that a project’s
noise effects can be significant even if they do not exceed local noise
standards. The court also read the CEQA Guidelines Appendix G
significance thresholds to conclude that a lead agency should consider
the increase in ambient noise levels caused by a project as well as the
absolute noise levels it generates.

Thus, even if the county could
show the special events in question would comply with local, absolute
noise standards after mitigation, an EIR could still be required if
noise testimony from neighboring residents constituted substantial
evidence in support of a fair argument that a significant increase in
ambient noise levels may occur.

In this particular instance, the
court deemed the noise testimony of a neighboring couple to be
substantial evidence in support of a fair argument because they could
hear “pounding music” from a wedding held before the permit was issued.
The court drew a similar conclusion regarding crowd noise claims. A
study indicating noise may have negative effects on wild animals in an
adjacent open space preserve also constituted substantial evidence that
the project might have a significant impact on biological resources when
considered in conjunction with observed noise levels at the property
line.

The court held that the record contained substantial
evidence in support of a fair argument that the project would result in
significant traffic impacts, as well. Neighbors and a hired expert
observed that a road providing access to the property was in some places
much narrower than normally required, lacked improved shoulders and
contained more than 30 blind curves. While the road was well below
capacity, the project would more than double traffic during operations.
Finally, while Caltrans ultimately concluded the project would not pose a
significant traffic or road safety impact, its own safety review
revealed an accident history twice that of the statewide average.

Attorney Fees

The
last section of the Court of Appeal’s opinion addressed the trial
court’s disposition of the petitioner’s attorney fee claim. Consistent
with the recent decision in SOURCE v. County of San Bernardino,
the opinion further reinforces the principle that the assessment of
fees by a lower court will not be overturned in the absence of a clear
abuse of discretion. (For a more detailed discussion of the SOURCE decision, see our April 17, 2015 CEQA Update).

Conclusion

Keep Our Mountains Quiet is
generous in its interpretation of the “fair argument” standard, so much
so that it raises the question of whether it would require an EIR of
any construction project in the vicinity of a quiet neighborhood,
regardless of whether such noise levels were allowed under local
regulations.

A solution may lie in an area where the opinion is
weakest, specifically, in its failure to consider what exactly may
constitute a “substantial” (and therefore significant) increase in
ambient noise or traffic hazards, a determination which CEQA leaves to
the lead agency’s discretion when defining thresholds of significance.
The opinion does not consider whether hearing “pounding music” exceeded
the threshold of significance applied by the county; nor, with regard to
potential noise impacts on wild animals, does it observe that the
Appendix G thresholds concern special status species only, at the
species level. By using their discretion to clearly define significance
thresholds (rather than just relying on Appendix G), lead agencies could
make it easier for the courts (and all others involved) to see whether
an MND is appropriate.

That said, to the extent lead agencies do rely directly on the thresholds suggested in Appendix G of the CEQA guidelines, Keep Our Mountains Quiet
correctly distinguishes between increases in ambient noise levels and
compliance with local noise standards, which Appendix G calls out
separately.

But perhaps all of this might have been avoided. The
facts of the case raise the question of whether the court or any of the
parties considered the environmental baseline, which must include
unauthorized as well as authorized activities. Here, the baseline
appears to have included the same unauthorized activities that the
permit triggering CEQA review sought to regulate. This suggests little,
if any change to the existing physical environment may have been in
play, which in turn suggests an MND may not have been inappropriate
after all.

Sullivan Canyon neighbors sue over hillside homes

Sullivan Canyon homeowners are suing to prevent construction of two hillside homes on a 12-acre property.

Residents
of bucolic Sullivan Canyon in Brentwood have filed a suit against the
city of Los Angeles, contending that officials violated state and local
laws in approving plans to remove dozens of protected live oak and
sycamore trees and build two 15,000- square-foot houses on a 12-acre
hillside property at the end of Old Ranch Road.

Sullivan
Canyon has been nominated for the California Register of Historical
Resources. Old Ranch Road, which winds through the canyon, is a rare
equestrian pocket of Los Angeles, where corrals line the tree-shaded
street and rustic wooden signs warn of "Horses & Children at Play."
The area boasts several midcentury ranch homes designed by noted
architect Cliff May. Residents were unaware of the construction plans,
the lawsuit alleges, until late September, when bulldozers began
knocking down old oak and sycamore trees. The suit's backers — including
Barbara Williams, the wife of political activist Tom Hayden, and the
Sullivan Canyon Property Owners Assn. — say that the city failed to
follow rules limiting hillside building, examine potentially harmful
environmental effects under California law and notify neighbors about
the project and its scope.
Among agencies named were the
Department of City Planning, the Department of Building and Safety and
the Board of Public Works, which approved the tree removal. The Los
Angeles city attorney's office said it had not yet seen the complaint,
which was filed Wednesday in Los Angeles County Superior Court.

The
lawsuit alleges that the project has already damaged Sullivan Canyon
Creek and will require the grading and filling of 166,000 cubic yards of
dirt on the surrounding hillsides — enough "to bury a football field 33
feet deep, including the end zones."

The suit asks the court to
withdraw the tree removal and building permits and to require the
developers to prepare an environmental impact report and comply with the
city's latest rules for hillside building.

"The lawsuit is about
constitutional due process rights for the community," said Sara Nichols,
a plaintiff who lives on Old Ranch Road.

Fred Gaines, an attorney
who represents the real estate partnerships that own the site, said he
had not yet seen the lawsuit, but added: "We're confident that the
permits will be upheld.... These are some of Los Angeles' wealthiest
residents trying to stop someone from having a house right next door to
theirs." He said he did not know who would live in the houses.

Councilman
Mike Bonin said the tree removal "demonstrated a lot of holes in the
city's process." He has introduced a motion to tighten rules about
public notice in cases in which old-growth trees in sensitive habitat
areas are at stake. "This is a significant project that has caused
serious environmental impacts," he told building and safety
commissioners at a recent meeting. If the project is allowed to
continue, he said, it "threatens to cause additional damage to this
hillside neighborhood and its residents."

Tuesday, May 05, 2015

Here is an important, and in this case, costly, rule about trees in California. If the tree has any portion of the trunk on your neighbor's property, you may not remove it or damage it without permission. It is a jointly owned and you can be out a bundle for not looking DOWN as well as up to see where the trunk comes out of the ground.

In a most interesting case published by
the California Court of Appeal on August 29, 2012, the Court determined
that a neighbor who cut down a single 70 foot tall Aleppo Pine tree
straddling the boundary line between two properties was liable to the
adjacent owner for $107,256.00!
The facts of the Kallis vs. Sones
decision are straightforward. Kallis bought his Los Angeles property
in 1955. His next door neighbor, Sones, purchased his lot in 1977.

The Pine tree likely started growing on one side of the line or the
other, the expert witnesses believed. Over the years, however, as the
tree grew and the trunk widened, the tree’s trunk came to straddle the
line. Nothing unusual there.

What made the tree abnormal is that a few feet up from its base, the
trunk split into two separate, but still large trunks. One of those
trunks grew over the Kallis property and the other grew over the Sones
property. Each trunk supported a fully developed system of branches
and limbs above it.
The secondary trunks were distinct and far enough apart even at their
bases to allow room for a metal property line fence to run up and
through the crotch of the tree.

In 2008, Sones, who became concerned that the tree could topple and
cause damage, hired a worker to cut it down. However, instead of just
severing the portion of the tree on the Sones side of the property line,
the laborer sawed off both of the secondary trunks, leaving just a
large stump in the ground. From that remaining stump, one could clearly
see where each secondary trunk originated and how large it was at the
base. In fact, both secondary trunks measured about 23 inches in
diameter.

Also, about 59% of the trunk was on the Sones’ side, whereas 41% was of the trunk was on the Kallis side.

In 2009, Kallis sued Sones for wrongful cutting and removal of the timber.

At trial, Sones admitted to cutting the tree, but argued that he should
only be responsible for 41% of the total value of the tree since Sones
owned the other 59%. Perhaps that made sense, but it did not persuade
the judge.

At trial, the Court found that the cost to replace the tree was
$53,628. It then doubled the amount (as allowed pursuant to California Civil Code §3346), and entered judgment against Sones for a whopping $107,256!

Sones appealed, but the Court of Appeal affirmed the Court’s ruling.
The appellate court determined that there were two alternate measures of
damage that the trial court could have assessed:

• The cost to replace the tree; and
• The reduction in the market value of Kallis’ property after the
tree was cut as compared with the value of the property before it was
cut.

Because the trial judge had found that Kallis was likely to replant a
tree similar in kind to the one Sones destroyed, the appellate Justices
upheld the “cost of replacement” measure of damages as the proper
approach. (The diminution of the value of the real property probably
would have been less than the replacement cost of the tree. Had the
property been on the market for sale, it is likely that Kallis would
have only received damages equal to the reduction in the value of his
property.)

What you can learn from the Kallis vs. Sones case is that before you chop down a tree (or hire someone to do it for you), be certain that it is entirely
on your own property. In that regard, it would be wise to obtain a
survey plotting the location of the tree if you have any doubt as to
which side of the property line the trunk is located.

Wednesday, February 25, 2015

You all know the old adage, "sometimes a cigar is just a cigar," not a you know, another thing.

Well, the same can be true with trees. Yes, often what is going on when neighbors get into bitter battles over trees and views, or trees dropping leaves and sticks in their pool, or trees casting shadows, or just being a pain in the tuchas, they really have an ax to grind over something more than that. The neighbor's kid beat out their kid for a slot on the soccer team; their house is bigger, more expensive, better situated, or their big car sticks into the neighbor's parking space.

Trees are substantial. Trees you can sue over. And so people often do.

But sometimes a tree is just a tree and when two neighbors get into it over the trees, they are really fighting over trees. And views. a lot of times it's the view, the one the tree is blocking. The one you used to have, or are pretty sure you used to have of the Bay, the hills, the river. But now there is nothing to see but that big ugly tree.

But stop and think. Talk to the neighbor. Go to mediation. Try to reach a compromise before a dispute over a tree turns into a whole other kind of cigar.

The
county hopes to buy the Coast Guard housing site in Point Reyes, and
turn it into an affordable housing complex. (Frankie Frost — Marin
Independent Journal)

The opportunity to turn 36 units of surplus military housing in Point
Reyes Station into publicly controlled affordable housing is one local
officials should seize.

Rep. Jared Huffman, county officials, local community leaders and
West Marin's Community Land Trust Association — or CLAM — are working
toward that goal.

The housing was built by the Coast Guard for its crews working at the
nearby communications center. But those military households now live
elsewhere, living on military vouchers, and the Pentagon has told the
Coast Guard to sell the property.

In the disposition of surplus federal property, paid for with
taxpayer money, uses meeting other public needs should take top
priority.

The need for affordable housing is just as pressing in West Marin as
it is in the rest of the county. Home prices and rents have outpaced
local paychecks, forcing more workers to commute from out of the county
to area jobs.

The challenge is particularly daunting for young people as
once-affordable units have given way to pricey homes or are now being
offered as part of a growing vacation rental market. For many, this
opportunity is about preventing local workers from being priced out of
the community.
Acquisition of these units for affordable housing can take many of
those workers, many of whom work on local ranches or in area stores and
restaurants, out of those lengthy commutes.

Huffman's leadership in Congress will be vital to winning support for turning this opportunity into a reality.

Using this housing, built with taxpayers' money for an important
public purpose, to fulfill another community-wide need makes sense and
should be embraced by Congress.

Huffman is right when he says, "We do not have too many opportunities like this in Marin County."

Tim
Westergren, the multi-millionaire founder of Pandora, the country's top
Internet radio service, has his heart set on building a new home that
many believe would be the largest private residence in rural West Marin
County. This has not been music to his new neighbors' ears.

The 48-year-old musician cum Internet entrepreneur, listed by Time
magazine in 2010 as one of the 100 most influential people in the world,
has submitted plans with the county of Marin for a two-story showplace
home with a separate caretaker apartment, meditation hut, lap pool,
studio and two garages on a forested ridge overlooking Tomales Bay in
rural Inverness Park, an unincorporated enclave adjacent to the quiet
village of Inverness, population 1,300.

In an October 2013 email addressed "Dear neighbors," Westergren
introduced himself and his wife, Smita Singh, founding director of the
William and Flora Hewlett Foundation's Global Development Program, as
the new owners of the 17-acre property at 135 Balboa Ave. For decades,
it had been a Russian Orthodox monastery known as St. Eugene's
Hermitage. The couple bought it in 2008.
"We wanted to check in, say hello and let you know how excited we are
to begin the process of building our home in your lovely neck of the
woods," they wrote. "Our program will be light on the land, and will be
sustainably designed and built. We are big believers in integrating a
home with its natural environment — minimizing the disturbance of both
the land and the surrounding community."

They went on to say, "Realistically, our move-in date will probably be in 2016, which seems a long ways away."

Not long enough, as it turns out, for the project's many opponents,
who have not been swayed by his just folks attempt to win them over.

"If you're someone who doesn't have an insane amount of money, then
you build sensibly," said Nancy Stein, who has lived on Balboa Avenue
for 40 years. "But because the money out there is insane, people are
able to do outlandish things. I would like this place to stay open to
musicians and artists, people who don't have a lot of money."

Judging from the many letters of opposition that have been sent to
county planners, most residents are aghast at the size of the
8,297-square-foot project, which would have 14 bathrooms and up to 17
"functional" bedrooms, according to critics, and would be up to four
times larger than the median-sized house in this community of remodeled
summer homes, weekend cottages, rustic cabins and modest single-family
dwellings.

Westergren says his plans call for nine bedrooms total, but the
Inverness Association, an 84-year-old organization of property owners
and preservationists, concludes that the second unit "functions as a
six-bedroom, two bath housing unit with detached two-car garage" and the
septic systems have been sized to service 11 bedrooms in the main
residence and six bedrooms in the second unit.

"It's outrageous," said longtime Inverness resident Inez Storer.
"It's a huge deal. The rumor is that it will be a boutique hotel. Why
else would you have 14 bathrooms?"

In its report to the county's Community Development Agency, the
Inverness Association notes that Westergren's "unusual application has
generated unprecedented local interest and comment from residents in
both the immediate neighborhood and the wider Inverness area."

In other words, the Point Reyes Peninsula is buzzing over the
high-powered celebrity couple and the gated family compound they hope to
build on land where humble monks used to pray in the solitude of their
monastery.

The plans were filed by a limited liability company named Hidden
Dragon. And, in an email to neighbors in September, the Internet
entrepreneur tried to allay suspicions among locals that Hidden Dragon
has a hidden agenda.

"In the short-term, our small family intends to use the property as a
weekend and vacation retreat, with a long-term intention of retiring
here," he wrote. "We can imagine having family and friends as guests,
and perhaps annually hosting both our extended families for several
weeks or more."
He explained that they needed that many bedrooms and bathrooms "so we
can gather both our extended families on occasion on this beautiful
property. Needless to say, this is very important to us."

This appeal resonated with Ivan and Sarah Diamond, who live on nearby Drakes Summit Road.
"Thank you and well done!!" they replied to Westergren's email. "We are completely supportive of your project."

But few are so unequivocal, and most are not buying much of what
Westergren is selling. In addition to its alarm over the estate's size,
the Inverness Association's report to county planners expressed concern
over the development's impact on water resources (the property relies on
a single well), the legality of the second unit, potential future use
of the property and the 31 "heritage trees" that Westergren plans to cut
down to carve out enough space for his family compound in the mature
Douglas fir forest that covers the ridge. The land borders the Golden
Gate National Recreation Area, which makes it a rare and valuable piece
of real estate that locals would like to see remain as unspoiled as
possible. For generations, urban dwellers have escaped to Inverness for
the joy of simple solace in its cool, coastal forests.

"I don't think you should purchase a forest, move in and cut it
down," said musician Tim Weed, who lives across the street from the
Hidden Dragon property.

Aside from the potential harm to the environment, locals are worried
that Westergren will be the harbinger of an invasion by other wealthy
property owners with similar designs on living in super-size houses that
fly in the face of West Marin's earthy, unpretentious heritage.

"It's putting a toe in the water for McMansions in this area," said
Ellen Shehadeh, a writer and editor for the weekly West Marin Citizen.
"I feel like it could be a precedent, the beginning of something that we
would not want here. The next person with a lot of money could do the
same thing."
In her letter to county planners, Amy Trainer, executive director of
the Environmental Action Committee of West Marin, said she could foresee
the Hidden Dragon complex paving the way for other large homes that
would replace already scarce affordable housing.

"This would fundamentally, and forever, alter the character of the neighborhood," she wrote.
After graduating from Stanford, Westergren started Pandora in 1999
with two partners. The Oakland company went public in 2011, raking in a
reported $138 million that year. The website Success Stories listed him
as one of the "top 10 people who got filthy rich in 2011."

He has hired Olson Kundig Architects, a noted Seattle firm, to design
his modern concrete, wood and glass house. Among its projects, Olson
Kundig designed the Bill and Melinda Gates Foundation Visitors Center,
the Microsoft Envisioning Center as well as a number of private homes,
including a glass farmhouse in northeast Oregon.

County planner Heidi Scoble said she expects the Hidden Dragon
project to have a public hearing before the Planning Commission in
January. As opponents prepare to challenge the project in the halls of
county government, Westergren has indicated he's willing to at least
consider the reasons for his new neighbors' opposition to a baronial
estate they find offensive to their sensibilities and to the natural
environment.

In an email response to an Independent Journal request for comment on
the controversy, Westergren wrote, "Inverness is a special place and
protecting the environment there is extremely important to me
personally. I look forward to a collaborative and constructive dialogue
with the community as I look to build a home for my family."

Tuesday, December 03, 2013

If you live in one of the communities with a tree and view ordinance or your ccr's define protected views, here are a few simple tips to insure you retain the views you had when you bought your property without getting into a lengthy, costly and acrimonious legal spat with your nighbor.

1. Document existing views. Take photographs when you move in of the views that you want to preserve, noting the location and height of trees that may become a problem in the future.

2. Meet your new neighbors and discuss with them your desire to maintain good relationships and good views, so that they can understand your interest in seeing their trees do not become too tall or bushy as they grow.

3. You may want to offer to share in tree maintenance costs from the beginning; after all, it is the investment in your property you are insuring, as well as a future cordial relationship with the neighbors.

4. Continue your photographic documentation of the trees as they grow (if they do), and discuss any potential problems as they arise. Are the trees starting to encroach the on the view? If you've had success with 1-3, your neighbor is likely to be willing to trim the trees before they become a real issue between you.

5. Know the rules for your community or development, including the procedure for filing a claim, going to mediation or other dispute resolution methods recommended.

6. If you need to invoke the process, you will be armed with knowledge and with a paper trail of your efforts to preserve the view amicably.

7. And don't forget to try mediation first, before you go to court (most tree/view ordinances require you ask your neighbor to mediate before you may bring a lawsuit). If you do get to court, the judge is likely to send you to mediation anyway, so why not try first, agreeing to use a skilled mediator and even a mutually agreed upon neutral expert to advise you and the neighbor of how to remediate the problems to the satisfaction of both parties?

Tuesday, November 12, 2013

Are trees like unruly teenagers, disobedient and rebellious? Or are they just following their instincts and their natural life cycle, when things go wrong? It could be a little bit of both and (as with the teenagers) most often the "parents" or tree owners have more than a little to do with their disruptive behavior.

People will plant the wrong trees in the wrong places. They don't mean to, they just didn't go to the right parenting classes. Monterey pines and many other species just do not belong in small back yards in Marin County. They are often shallow rooted, drop debris, including large branches and are subject to pests and diseases that can ravage them and their neighbor trees. Eucalypts are prone to whole branch failure. You do not want to be under one of them when the wind is blowing.

We have handled several such cases, two most recently, where diseased and in one case, practically dead as a doornail, trees leaned precariously over the homes of nearby neighbors.

Neighbors feared going into their own yards, and were advised by experienced tree risk assessors that the tree could easily pierce the roof. Imagine cowering in corners of your own home, having had to abandon living, dining or sleeping quarters!

Neighborly pleas, arborists' reports and even letters from attorneys fell on deaf ears. In both cases, emergency court orders were the only remedy. Luckily the orders were in place before the trees could do their damage.

Don't get me wrong; we try to get the neighbors to try to to resolve these issues between themselves first. We even offer mediation with an expert who can provide sound scientific information on the health of the trees. Can they be saved? Sometimes. Can sneaky roots that have invaded pipes and sewer lines be turned back? Often. And here's the interesting thing: except for those cases where swift action by a stern judge is called for to avert an impending tragedy, most court cases involving trees, neighbors and property end up being sent to mediation, the courts having more pressing matters to attend to, such as violent crime or theft of valuables.

So why not mediate your tree issues first, before they become costly court cases? Save time, money and maybe even your relationship with the neighbors. Often taking this route makes everyone feel more kindly toward one another, and neighbors have been known to pitch in to help pay for trimming or removal of the offending tree, maybe even replacing it with a more "friendly" species.

Monday, November 11, 2013

Some towns are more protective of their residents' views and access to natural light than others. Do you have a Bay view? Can you see the magical City of San Francisco out your window? Does the sun bathe your garden in a rich glow to help keep the flowers bright and healthy and provide you with a sunny disposition?

Or are some trees down hill starting to encroach on the vista and block out the rays? If you live in the Town of Tiburon California (and many others, but we're focusing on one today), there are steps you can take to restore what you probably paid a premium price for when you first bought in a bucolic location.

To give you an example of how expansive the protected views can be in a town with such an ordinance, here is an excerpt from the code (under section 15-2
Definitions):

"View" means a scene from the primary living area of a
residence or the active use areas of a nonresidential building. The
term "view" includes both upslope and downslope scenes,
but is generally medium or long range in nature, as opposed to short
range. Views include but are not limited to skylines,
bridges, landmarks, distant cities, distinctive geologic features,
hillside
terrains, wooded canyons, ridges and bodies of water.

(6) The Tiburon Peninsula or surrounding communities (including the city of San Francisco).

Protecting your view and access to light does not allow you to unfettered tree removal. There are suggestions such as trimming, windowing or selective thinking to restore the view while providing the neighbor with shelter and privacy. And you are only entitled to restore the view and sunlight access that existed when you moved into the property.

And there is a strict procedure to be followed before any action is actually taken.For instance, you must first try to work things out with the neighbor amicably. If this does not work, you next offer to go to mediation with the neighbor. This is, in the opinion of this writer, a prudent move, one that can save the homeowners time, money and a lot of additional aggravation.

If mediation fails, or your neighbor does not agree, you may prepare a tree claim, outlining your grievances and next offer the neighbor the opportunity to go to binding arbitration. Details on preparing your claim are outlined in the ordinance. Before undertaking any of this, read the ordinance carefully.

If all else fails, you may bring suit against your neighbor. While this may become your only option, and you may well prevail, this is sure to be costly and lead to ill will on all sides. Think about it carefully.

One note: neither Tiburon nor any other Town or City that I'm aware of provides names of mediators experienced in tree law and view disputes. If they did so, mightn't it be more likely that homeowners would choose that route to resolve their differences?

Wednesday, October 30, 2013

Did you know that many Cities, Towns and Counties have tree ordinances? Some have view and sunlight ordinances too. All the rules are particular to the location, but they most often call for a permit to cut down trees of a certain size, type or number. If you want to cut down one of the "desirable" trees in your town (say a redwood in Mill Valley or an oak in many places), you usually will need an arborist's report, giving your reasons, such as disease or decay. Use this handy site for finding your town's ordinance.

Sometimes, there will be hearings and your neighbors may speak out. When, as in the last post on this blog, someone wants to cut a heritage oak for construction, where those trees are protected, that might not be a good enough reason. Especially if the neighbors cry foul.On the other hand, if you have an "undesirable" tree, such as Eucalyptus just about anywhere, acacia or fast growing pines or cypress (note, if you live on the Monterey Peninsula, proceed with caution if you want to cut a native Monterey cypress), your neighbors may cheer. They may even press the Town fathers to make you take down these trees if there is a threat of their falling on their property.

I recently had a case where an almost entirely dead tree of the "undesirable" type loomed over my client's house, making her fear to be in her own backyard. A certified tree risk assessor deemed it a hazard, but it took a judge, and a stern warning about contempt of court, to get the tree down.This is a costly way to proceed. If your neighbor's tree is a threat to your well-being, make sure the threat is real, talk to your neighbor about it, know what the law says in your Town and consider mediation before bringing in the legal guns.

Heritage oak in San Anselmo dodges the ax

A group of San Anselmo residents succeeded Tuesday night in its bid to save a heritage, white valley oak tree from being felled.

"Truly, it is a miracle," said Linda Jensen, who led the fight to save the tree.

Due
to the labyrinthine process by which the matter was handled, the tree
was saved by just two votes of the Town Council, and despite the fact
the town could face a lawsuit as a result of the decision.
"The
whole thing was a little unclear to me; it was very complicated," said
Michiko Conklin, owner of the property where the oak is located at 134
Madrone Ave.

Public Works Director Sean Condry initially granted
Conklin permission to remove the tree. Conklin says she must cut down
the oak because its roots are damaging the foundation of her house. But
Jensen, who fears the removal of Conklin's tree could lead to the death
of several white oaks on her adjacent property, paid $500 to appeal the
decision to the Town Council.

On Sept. 24, the council voted 3-1
to grant Jensen's appeal without prejudice, which meant that Conklin
would be granted a second opportunity to change the council's mind.
Councilman Jeff Kroot, who is an architect, recused himself from that
vote because he has been hired by Conklin to add a bedroom to the house.

On Tuesday night, the council deadlocked 2-2, with Kroot once
again recusing himself, over whether to reverse its decision on the
appeal. Councilmen Tom McInerney and Ford Greene voted to uphold the
appeal while Councilwomen Liz Dahlgren and Kay Coleman voted to reverse
the appeal. Since a majority vote is required to reverse a council
decision, the appeal was upheld.

McInerney and Greene stood their
ground despite that Conklin's lawyer, Neil Sorensen, made veiled threats
that Conklin might sue the town over the matter.

In a letter
Sorensen sent to the council prior to Tuesday's meeting, he wrote,
"Since the tree is clearly causing damage to Ms. Conklin's house, the
town may be subject to significant liability if it declines the tree
removal permit."

Sorensen made similar comments during Tuesday night's meeting.

"His
comments were, in my view, counterproductive," McInerney said
Wednesday. "I felt that the homeowner had not met her burden of proof to
justify cutting down the tree, at least consistent with our ordinance."

Under
San Anselmo's town code, which provides special protection for
"heritage" trees, Conklin had to demonstrate that cutting down the tree
would be a necessity for the economic enjoyment of her home.

"I
just wasn't convinced this work was necessary," McInerney said. He added
that the town's attorney advised that the council had sufficient
grounds to make that ruling.

At Tuesday's meeting, Conklin
provided new reports from an arborist, Ed Gurka, and an engineer, Peter
Nissen, who stated that the tree's roots are undermining her house's
foundation. The arborist and engineer were recommended to Conklin by
town staff and reaffirmed similar evaluations provided by an arborist
and engineer that Conklin had previously hired.

Public Works
Director Condry told the council Tuesday that the foundation of
Conklin's house can be designed to bridge the roots at an estimated cost
of $10,000 to $25,000; it is estimated it will cost $11,000 to remove
the tree. Experts differ over how fast the tree's roots will grow and
how long that solution would last.

Jensen said people who want to
save the tree have offered to work with Conklin in an attempt to reduce
the cost of the work. Conklin's plans to add a bedroom to the house
could be jeopardized by the tree's preservation, since she would need
space for additional parking for approval of the addition. But Conklin
says that has nothing to do with her bid to remove the oak.

She said Wednesday, "I do not know what we're going to do at this point."